ARB CASE NO. 01-026
ALJ CASE NO. 00-WIA-3
DATE: August 6, 2001
In the Matter of:
UNITED TRIBES OF KANSAS,
AND SOUTHEAST NEBRASKA, INC.,
COMPLAINANT,
v.
UNITED STATES DEPARTMENT OF LABOR,
EMPLOYMENT AND TRAINING ADMINISTRATION,
RESPONDENT,
and
WYANDOTTE TRIBE OF OKLAHOMA,
PARTY-in-INTEREST.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Scott W. Williams, Esq., Alexander and Karshmer, Berkeley, California
For the Respondent: Stephen R. Jones, Esq., Harry L. Sheinfeld, Esq., Charles D. Raymond, Esq., U.S. Department of Labor, Washington, D.C.
FINAL DECISION AND ORDER
This case arises under the Workforce Investment Act of 1998 (WIA), as amended, 29 U.S.C.A. §§2801-2945 (West 1999 & Supp. 2000) and implementing regulations at 20 C.F.R. §§660-671 (2001). The case involves WIA section 166, 29 U.S.C.A. §2911, which supports employment and training programs for Native Americans. The solicitation for the grant applications at issue appears at 64 Fed. Reg. 49,522-49,528 (Sept. 13, 1999). It contains the procedures by which the Department of Labor Employment and Training Administration (ETA) stated that it would designate grant recipients for fiscal years 2000 and 2001.
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Complainant United Tribes of Kansas and Southeast Nebraska, Inc. (United Tribes), a consortium of the Sac and Fox Tribe of Missouri and the Iowa Tribe of Kansas and Nebraska, complains that Respondent Department of Labor (DOL) Employment and Training Administration (ETA) wrongfully awarded a WIA section 166 grant to the Party-in-Interest, the Wyandotte Tribe of Oklahoma (Wyandottes). The Administrative Law Judge (ALJ) assigned to hear the case upheld the decision of the ETA Grant Officer. We affirm the decision of the ALJ.
I. BACKGROUND
Statutory and Regulatory Scheme
In enacting WIA section 166, Congress sought to support employment and training activities for Indian, Alaska Native and Native Hawaiian individuals for purposes of "develop[ing] more fully the academic, occupational, and literacy skills of such individuals; ... mak[ing] such individuals more competitive in the workforce; and . . . promot[ing] the economic and social development of Indian, Alaska Native, and Native Hawaiian communities in accordance with the goals and values of such communities." 29 U.S.C.A. §2911(a)(1). An additional object was to "[h]elp [these individuals] achieve personal and economic self-sufficiency." 20 C.F.R. §668.100(a)(4). The regulations state that "[t]he principal means of accomplishing these purposes is to enable tribes and Native American organizations to provide employment and training services to Native American peoples and their communities" specifically "in a culturally appropriate manner, consistent with the principles of Indian self-determination." 20 C.F.R. §668.100(b). Pursuant to WIA section 166(h)(1), the Secretary designated ETA as responsible for awarding grants to "Indian tribes, tribal organizations" and "Indian-controlled organizations serving Indians" to carry out authorized activities. 29 U.S.C.A. §2911(c)(1).1
1See 20 C.F.R. §668.300 for a description of individuals eligible to receive services under the Indian and Native American (INA) program; see 20 C.F.R. §668.340 for enumerated INA grantee allowable activities; see 20 C.F.R. §668.500 and §668.510 for enumerated INA grantee services to communities.
2 Federally-recognized tribes or other enumerated organizations receive the "highest priority" over any other organization if they possess the capability to administer the program and to meet eligibility and regulatory requirements; the priority extends only to areas over which the organizations exercise "legal jurisdiction," such as their reservations. 20 C.F.R. §668.210. See United Urban Indian Council, Inc. v. U.S. Dep't of Labor, ARB No. 01-025, ALJ No. 2000-WIA-4 (ARB May 18, 2001).
3 The nine counties subject to competition were Crawford and Cherokee Counties in the State of Kansas and Barton, Jasper, Newton, McDonald, Dade, Lawrence and Barry Counties in the State of Missouri. See Complainant's Exhibit (CX) 3. United Tribes maintains an office in Baxter Springs, Cherokee County, Kansas, for purposes of servicing not only the nine-county area subject to competition but also additional counties in eastern Kansas and western Missouri. The Wyandottes found the nine-county area attractive because of the high concentration of INA individuals residing there within an 100-mile radius of its Tribal Complex located in Ottawa County, Oklahoma. Many of these INA individuals are Wyandotte. Administrative File (AF) at E 97-98, 111.
4 As the Secretary noted in North Dakota Rural Development, "this is a difficult standard and properly so, because there must be considerable discretion exercised in determining the award of Department funds among multiple grant applicants. When there is a basis in the record for a Grant Officer's . . . determination, neither an ALJ nor the Secretary may reverse the determination merely because he might weigh the same information and call the balance differently."
5 While not dispositive of the evidentiary issues now before the Board, we nevertheless question ETA's reliance upon the claim of privilege in refusing to divulge information about the advisory panel. The deliberative process privilege is qualified; it balances a party's need for the information against the government's interest in confidentiality, frank discussion of legal and policy matters being essential to the decision-making process. The privilege contemplates a particular means of assertion. Three requirements must be met:
First, there must be a formal claim of privilege lodged by the head of the department that has control over the matter, after actual consideration by that officer. Second, the responsible agency official must provide precise and certain reasons for asserting the confidentiality over the information or documents. Third, the government information or documents sought to be shielded must be identified and described.
6 James Wm. Moore et al., Moore's Federal Practice §26.52[5] (3d ed. 2001).
In support of its claim of deliberative process privilege ETA merely asserted that, "Any documents which reflect the identity, analysis, discussion or deliberations of the panel have been withheld, because they are properly protected from disclosure under the deliberative process privilege." This claim, without more, was clearly inadequate. See, e.g., United States v. Reynolds, 345 U.S. 1, 7-8 (1953); United States v. O'Neill, 619 F.2d 222, 226 (3d Cir. 1980); EEOC v. Airborne Express, No. CIV.A.98-1471, 1999 WL 124380 at *1 (E.D. Pa. Feb. 23, 1999); United States v. Ernstoff, 183 F.R.D. 148, 152 (D.N.J. 1998); Resident Advisory Bd. v. Rizzo, 97 F.R.D. 749, 752 (E.D. Pa. 1983); Midwest Farmworker v. U.S. Dep't of Labor, ARB Case No. 98-144, ALJ Case Nos. 97-JTP-20/21/22, slip. op. at 2 (ARB Jul. 23, 1998).
6 The information in question consisted of review panel summary technical rating forms developed from panel scoring of solicitation Parts A and B submissions, Respondent's Exhibits (RXX) 2 and 3. The panel focused on the five solicitation rating criteria referenced above, i.e., previous experience; approach to providing services; description of the planning process; coordination, linkages and ability to utilize existing community resources; and demonstrated support and recognition of the INA community and service population. 64 Fed. Reg. at 49,524. These criteria carry maximum possible rating points of 20, 40, 15, 15 and ten, respectively, for a maximum total of 100 points. United Tribes received a total of 61 points whereas the Wyandottes received a total of 84 points.
The ALJ must not permit the introduction at the hearing of any documentation if it has not been made available for review by the other parties to the proceeding either at the time ordered for any prehearing conference, or, in the absence of such an order, at least three weeks prior to the hearing date.
8 United Tribes also contends that it was improperly denied the opportunity to cross-examine the members of the review panel. However, although the panel advised the Grant Officer, it was the Grant Officer who actually made the decision under review in this appeal. The Grant Officer was available for cross-examination at the hearing and United Tribes, in fact, cross-examined her. Therefore, United Tribes had a full and fair opportunity to expose what it believed were fatal errors in the award of this grant.
9 If United Tribes believed that it was unfairly surprised by ETA's introduction of evidence, it could have requested a continuance. It did not do so.